This article on Slate poses a fascinating question: “What’s the best jury size?”

Interestingly, a 1978 U.S. Supreme Court case, Ballew v. Georgia, plays an important role in the answer.

A federal judge has lifted a temporary restraining order that barred Governor Nathan Deal from suspending  six members of the DeKalb County Board of Education, removing a legal barrier that last week had also blocked the governor from  immediately replacing them.

The school system was placed on probation last December by the Southern Association of Colleges and Schools Council on Accreditation and School Improvement. The removal is seen by Deal as part of an effort to salvage the district’s accreditation.

In an order filed late Monday afternoon, U.S. District Judge Richard Story turned down a request for a preliminary injunction that would have allowed the six school board members to remain in office while they continue to challenge the constitutionality of their removal.

In a written statement, Georgia Attorney General Sam Olens applauded Story’s ruling as a “well-reasoned order affirming our position that the Governor was on solid legal ground in removing six DeKalb school board members. Judge Story correctly recognized that the students in the DeKalb school system must come first.  I appreciate Judge Story’s careful thought, hard work, and swift decision in this time-sensitive matter.”

Robert Wilson, attorney for DeKalb schools, couldn’t be reached.

Story  held  that state law issues raised in the complaint – which was filed two weeks ago  by the DeKalb County School District and board member Eugene Walker — should be decided by Georgia courts, not the federal courts.  To that end, Story said that he would certify the questions of state law  to the Georgia Supreme Court “rather than having to wait on a newly-filed state action to work its way through to appeal.”

The public has a “significant competing interest” to those of the school district and the school board, Story said in his ruling. “Though the public has an interest in its elected officials being allowed to serve in the offices to which they were elected, there is an even greater public interest at stake here,” he said. “The interest of the public in a healthy public school system outweighs the interests of board members in serving in their positions. … The harm from the loss of accreditation to the school district and the resulting harm to the students in the district are profound. To permit the board members to continue to serve while their individual claims are resolved risks substantial consequences for the school district and its students. The Court finds that this risk of harm far outweighs the risks to the board members.”

Walker and the school district had claimed that removal of six members of the nine-member board by Deal was unconstitutional.  Attorneys for the school district and Walker said the board members’ posts were a property right under the Fourteenth Amendment that could not be stripped from them without due process. A 14-hour state school board hearing on the matter, the judge said, “met the basic requirements of pre-termination due process.” The judge added that state law permits a suspended school board member to petition for reinstatement and provides for another hearing and judicial review. “Thus, there is considerable evidence that due process as required by the Fourteenth Amendment has been satisfied,” Story said in his ruling.

Story, citing Georgia and federal case law that bars political subdivisions of a state from challenging state statutes under the aegis of the Fourteenth Amendment, suggested that the school district might lack standing to sue in federal court. While he declined to decide the issue of standing, the judge concluded that the question “nonetheless creates a substantial question about whether the School district will ultimately succeed on its Fourteenth Amendment claim.”

While the school district’s attorneys identified the property right of the board members  “as an interest that cannot be denied without due process of law,” Story held that they “fail to identify any property interest of the school district that is threatened by the state’s action.”

“The school district has no interest in any particular person serving on the school board,” he wrote. “Rather, the interest  of the school district is that a duly constituted board be in place so that it can conduct business. The school board suspension statute assures continuity of operations through appointments by the governor to fill vacancies created by the suspensions. Thus, the loss of any property interest by the school district is not apparent to the Court.”

Story said that the only harm to the plaintiffs “is their temporary inability to perform the duties of the office to which they were elected. Because they are presently suspended with pay, they are suffering no monetary loss,” and any permanent removal of board members “can only occur after they have been afforded the process provided” established by state law.

“In the event plaintiffs ultimately prevail in the case, they will be reinstated to their positions and will receive compensation to which they are entitled,” Story said. “Thus, if they ultimately prevail, they will have only suffered the loss of the opportunity to serve in their elected office for a limited period of time.”

Lawyers for Common Cause, including Atlanta attorney Emmet Bondurant, clashed with lawyers for the U.S. Senate for more than two hours this morning in a federal hearing in Washington over a suit challenging the constitutionality of the U.S. Senate filibuster, said Common Cause spokeswoman Mary Boyle.

Boyle said that U.S. District Judge Emmet Sullivan of the District of the District of Columbia “asked a lot of questions to both sides” and ordered lawyers with the Office of Senate Legal Counsel “to file additional information” by Thursday  in response to several cases cited in Common Cause’s complaint and formal response to the Senate’s motion to dismiss the case.

Two Georgia plaintiffs in the Common Cause case, U.S. Reps. John Lewis and Hank Johnson, both Democrats, were not at the hearing or at the news conference afterward, Boyle said.

But in a statement included in Common Cause’s news release, Johnson – a Decatur attorney –  called the Senate filibuster “a tool for unnecessary obstruction.”

“It undermines the Constitution’s checks and balances, and it denies the Constitution’s guarantee of equal representations to the states.”

In a news release issued shortly after the hearing ended, Common Cause said that Bondurant urged Sullivan to schedule a trial on the merits of the suit. Bondurant argued that the federal courts have an established right to review and overturn laws passed by both houses of Congress and signed by the President.

“It cannot be that a Senate rule is immune from review when a statute (passed by both Houses) signed by the President is subject to review,” Bondurant said.

The filibuster is a Senate rule approved by the U.S. Senate in 1917 that requires three-fifths vote of the Senate to close debate on any matter before the Senate body as a whole. The filibuster is not incorporated in the U.S. Constitution and, according to Bondurant, was not used by the Continental Congress to end debate, which was done by a simple majority.

The U.S. Chamber of Commerce’s Institute for Legal Reform has placed Georgia in the middle of its rankings of states’ tort systems as perceived by the business community.

The Peach State garnered a ranking of 24, which is a higher spot than in the last decade and a better ranking than most other southeastern states. Read more »

This just in from the Eleventh U.S. Circuit Court of Appeals: a decision on Georgia’s immigration law.

The decision upholds an injunction against Section 7 of the law, which made it illegal to transport or harbor an illegal alien in Georgia. But it reverses an injunction against Section 8 of the law, which authorizes law enforcement officers to investigate the immigration status of criminal suspects who cannot provide particular documents to prove their status.

In conclusion, Judge Charles Wilson wrote: “The illegal-immigration issues that our country faces today are, no doubt, exceptionally important to both the state and federal governments. As a federal court, we do not sit in judgment of the policy decisions of state legislatures, and we are usually reluctant to conclude that states are forbidden from enacting statutes related to activities within their borders. However, when state laws intrude into areas of overwhelming federal interest and erode the discretion implicit in the sovereignty of the country, we must recognize the supremacy of federal law. Here, section 7 of H.B. 87 cannot be reconciled with the federal immigration scheme or the individual provisions of the INA. As a result, we affirm in part the district court’s order preliminarily enjoining enforcement of section 7. We reverse in part the portion of that order enjoining section 8. This case is remanded to the district court for further proceedings.”

U.S. Supreme Court Justice Stephen Breyer will speak at an Atlanta synagogue on Wednesday, Nov. 7, according to Stuart Eizenstat, a former Atlantan who now heads the international practice at Washington’s Covington & Burling.

Breyer will deliver the 24th Eizenstat Family Memorial Lecture, a series Eizenstat established at Ahavath Achim synagogue to honor his family. Many of the previous speakers have been lawyers, including Justice Ruth Bader Ginsburg, Hillary Rodham Clinton, Bill Clinton, Joseph Lieberman and Alan Dershowitz.

Eizenstat was an adviser to President Jimmy Carter (another speaker) and served in several positions in the Clinton Administration, including: U.S. Ambassador to the European Union, Under Secretary of Commerce for International Trade, Under Secretary of State for Economic, Business and Agricultural Affairs, and Deputy Secretary of the Treasury.

A former Catoosa County magistrate judge who was stripped of his post last year by the Supreme Court of Georgia has sued the county’s chief magistrate, the county sheriff and a deputy, claiming his constitutional rights were violated when he was arrested
in 2010 and forcibly removed from his office at the Catoosa County Courthouse.

Anthony Peters, a former deputy magistrate judge, sued Sheriff Phil Summers, Deputy Dan Bilbrey and former Chief Magistrate Donald “Sonny” Caldwell for $20 million in U.S. District Court in Rome — one day shy of the two-year anniversary of his arrest.

In his suit, Peters blames his arrest – which sparked an ethics investigation that eventually led to his removal from office —  on his stated intention to run for the chief magistrate judge’s post after Caldwell told him he did not intend to seek another term. He claims that after learning that Peters had begun campaigning for the post, he conspired with Summers and Bilbrey “to interfere and block” Peters’ campaign and use his judicial powers to discredit him. Read more »

This piece by the Washington Post’s Ezra Klein outlines the history behind Emmet Bondurant’s fight against Senate filibusters.

Talk radio’s Neal Boortz is one of nearly three dozen lawyers who have been nominated for an opening on the Supreme Court of Georgia.

Governor Nathan Deal’s Judicial Nominating Commission has released the names it has received since asking the public for nominees a couple of weeks ago. The JNC is taking nominations through May 25, although anyone interested in the position must also complete the JNC’s application packet by that date to move forward in the process.

Our story in Tuesday’s paper (online now) says that the JNC received several brief emails nominating Boortz for the opening. Boortz, who is listed in the Georgia State Bar directory as an inactive member, told the Daily Report he would complete the JNC’s application.

Daily Report subscribers (or those who want to sign up for a free 30-day trial subscription) can find the full story here.

A unanimous panel of the 11^th U.S. Circuit Court of Appeals has affirmed a ruling that ordered a transgender woman be allowed to return to her job at the Georgia General Assembly.

Vandiver Elizabeth Glenn, who was born a biological male, lost her job as an editor in the state’s Office of Legislative Counsel after she told a supervisor that she would be coming to work as a woman and changing her legal name to a female one. Tuesday’s ruling, issued less than a week after the appeals panel heard oral argument, agreed with U.S. District Judge Richard W. Story that the firing amounted to sex discrimination.

We will have a full story on this decision on our website later this afternoon.